Document Type : Research Paper

Author

• Meisa Kamyab

Ph.D, Public Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran

Abstract

Introduction
The discussion of judicial empathy forms part of the longstanding debate over the dichotomy between emotion and reason, in which emotions are often portrayed as unruly, destabilizing forces incompatible with the rule of law. Although empathy has become a common term in critical studies, it is rarely defined or described, and is usually assessed only as a positive concept contrasted with something negative or undesirable. Once introduced into the legal sphere, however, the term acquires a limited and complex meaning for several reasons. The separation between ethics and law, the substantive differences between judging and therapeutic practice, and concerns about maintaining the rule of law and equal treatment all contribute to skepticism toward incorporating empathy into judicial proceedings. There is no doubt that empathy plays an important role in social life; however, the central issue in scholarship on law and emotion concerns the role that empathy should play in the judicial process. In this respect, the current study argued that debating whether judges ought to possess empathy is ultimately futile, because they inevitably rely on this emotional capacity. A judge employs empathy as a tool to understand conflicting claims. Empathy enables judges to grasp the perspectives of both parties in a dispute; however, it does not determine the outcome of a case or favor one side over the other. The key questions, therefore, concern toward whom judges should direct their empathy, how they should express it, and the extent to which they recognize its limitations. Accordingly, this study first defined empathy, then examined the arguments of both its proponents and its critics. It went on to provide examples of empathetic perspectives in judicial proceedings. Affirming empathy as an essential emotional capacity, the study finally proposed strategies for cultivating an empathetic judiciary.

Literature Review

Scholarship on law and emotion began to gain prominence with the publication of a volume titled The Passions of Law (Bandes, 1999). The contributors to this volume sought to trace the influence of emotions across various domains of law. In Hiding From Humanity, Nussbaum (2004) approached the relationship between law and emotion from a philosophical standpoint. She drew attention to the emotions of disgust and shame and warned against their use in law because they stem from an unrealistic desire to avoid vulnerability. The volume Law, Reason, and Emotion (Sellers, 2017) treated emotion as one of the forces that shapes and strengthens the law. In “The Persistent Cultural Script of Judicial Dispassion,” Maroney (2011) highlighted the persistent ideal of judicial dispassion by investigating its historical roots. She then dealt with legal actors, judicial temperament, and emotion regulation, distinguishing her work from more philosophical accounts by grounding it in neuroscientific research. White (2014), in “Till Human Voices Wake Us,” examined human dignity cases, referred to emotions as indispensable for reaching just decisions, identifying their roles as “orientation, tracker, and service” (p. 201). There are also several studies on law and emotion in the Iranian context. For instance, Kamyab and Jalali (2022) in “Law and Emotion: The Implications of Neuroscience for Legal Decision-Making” sought to initiate the discussion on the role of emotions in legal decision-making and moral judgment. Empirical evidence proved that mirror neurons—a shared neural mechanism—form the evolutionary basis of empathy and constitute a common language for understanding rights. In “Loss of Free Will in the Iranian Criminal Justice System,” Petoft et al. (2023) examined the role and reliability of neuroscientific evidence in legal proceedings. Despite these valuable contributions, a gap remains regarding how empathetic responses should be incorporated into the law, particularly in judicial decision-making. The current research aimed to address that gap by clarifying the concept of empathy and examining the challenges and misconceptions surrounding its use in judicial discourse.

Materials and Methods

This study falls within the field of normative legal research. Normative legal theory aims to provide a self-sufficient account of the law, its concepts, and its principles. The present analysis adopted a legal–doctrinal approach within the broader law and emotion scholarship, seeking to explore how emotion is, could be, or should be reflected in specific areas of legal doctrine or law. It also employed an approach about the legal actor to examine how the behavior of particular legal actors—in carrying out their legal functions—is, could be, or should be influenced by emotion.

Results and Discussion

Empathy should not only be permitted within the legal professions and judicial practice, but actively encouraged in the interest of equality and the rule of law. As an emotional capacity, empathy serves both as a source of understanding in legal proceedings and as a tool for interpretation. However, legal education can impede the development of empathetic responses in judging, as it often treats factors such as emotion as irrelevant. This view within legal discourse restricts both emotional and cognitive engagement, leading to the marginalization of empathetic understanding. Human beings inevitably rely on empathy, yet even with the best intentions, this empathy is often selective and prone to blind spots. Awareness of this tendency allows us to strive for correction. However, research in cognitive psychology and decision-making indicates that human beings are not always adept at identifying or challenging flaws in their own assumptions in interactions with others. Judges, like all humans, make better decisions when they critically re-examine their assumptions. Yet this re-examination does not occur in a vacuum. A judge who fails to recognize empathy as a prerequisite for fair judgment faces significant challenges in reaching an empathetic decision. Therefore, cultivating and encouraging empathy is essential, alongside promoting pluralism in judicial appointments.

Conclusion

The life experience of any individual is limited; in addition, their perspectives are shaped by the contexts in which they are raised. It is thus unrealistic to expect a judge to fully empathize with all parties involved in a case. Therefore, structuring courts with multiple judges can introduce diverse perspectives into the adjudication process. Measures such as incorporating empathy into judicial training, promoting diversity and plurality in judicial appointments, and encouraging legal storytelling are approaches that can help cultivate a more empathetic judiciary. Storytelling is an important approach to foster empathetic judging. Narratives capture real human experiences and can serve as powerful tools for promoting empathetic understanding. A tangible story often illustrates lived experiences more effectively than abstract theory, encouraging judges to respond with genuine care and empathy. Advocates of legal storytelling and empathetic decision-making tend to share two key concerns. First, legal theory and discourse have become increasingly detached from individual experiences. Academics, judges, and lawyers often focus on general concepts and abstractions, neglecting the human realities underlying the law. Narratives, by contrast, heighten the sensitivity of legal actors to these realities, presenting life as it is rather than as the law describes it. By bringing the law closer to people’s lived experiences and giving voice to the less heard, narratives guide legal actors toward more empathetic responses. Every judge and legal actor should take both their own and others’ emotional experiences seriously. By engaging in open discussion, acknowledging these emotions, and embracing judicial empathy, they can contribute to the advancement of scholarship in the field of aw and emotion.

Keywords

• Law and Emotion
• Judicial Empathy
• Judging
• Sympathy
• Dispassionate Judge

Main Subjects

• Public Law